Avila v. Municipal Court

Opinion

DALSIMER, J. Plaintiff, Steven Jack Avila, appeals from a superior court judgment denying a peremptory writ of prohibition. Plaintiff’s sole claim in the writ and this appeal is that the municipal court violated his Penal Code section 1382 speedy trial rights by setting the cause for trial after the statutory period ended without establishing good cause for the delay. Because of procedural infirmities in the instant appeal, we do not reach the merits of plaintiff’s speedy trial claim.

On January 27, 1982, plaintiff was charged in municipal court with violations of Vehicle Code section 23152, subdivisions (a) and (b). On March 11, 1982, he pleaded not guilty, and trial was scheduled for May 10, 1982. On May 10, 1982, the case was called and trailed to the following day. It continued to be trailed day by day until Thursday, May 20, 1982. On that day, the tenth since the case had been first called for trial, the case was transferred to a trial judge for trial. Plaintiff filed a peremptory challenge under Code of Civil Procedure section 170.6 against that trial judge. The case was transferred back to the original courtroom. When the case was called there, plaintiff refused to stipulate that the trial take place before an available commissioner. The court ruled over Avila’s objection that the peremptory challenge to one judge and the refusal to stipulate to having a commissioner conduct the trial constituted good cause to trail the case over to Monday, May 24, 1982. There is nothing in the record to indicate why the case was not trailed to Friday, May 21, 1982.

[810]On May 24, 1982, when the matter was called, plaintiff moved to dismiss the action against him pursuant to Penal Code section 1382. The motion was denied. The court again ruled that the Code of Civil Procedure section 170.6 challenge and the refusal to stipulate to a commissioner constituted good cause to trail the matter two working days beyond the 10-day statutory period.

Plaintiff’s challenge to this decision by a petition for writ of prohibition was denied by the superior court, and the present appeal ensued.

The trial in the municipal court was continued on several occasions to allow time for this court’s decision.

On May 16, 1983, after we had denied plaintiff’s petition for writ of supersedeas and refused to stay the municipal court proceedings, plaintiff pleaded nolo contendere to a reduced charge of violating Vehicle Code section 23103 (reckless driving).